Rowen v. Chicago G. W. Ry. Co.

• Decision Date: 17 October 1906
• Citation: 198 Mo. 654,96 S.W. 1009
• Parties: ROWEN v. CHICAGO G. W. RY. CO.
• Court: Missouri Supreme Court

96 S.W. 1009

198 Mo. 654

ROWEN v. CHICAGO G. W. RY. CO.

Supreme Court of Missouri.

October 17, 1906.

RAILROADS—OPERATION—INJURY TO ANIMALS —DEFECTIVE GATE—PROXIMATE CAUSE—EVIDENCE—SUFFICIENCY.

In an action for the killing of horses which had strayed through an open gate from plaintiff's inclosed field onto defendant's right of way, there was no direct evidence as to how the gate became opened. The gate failed to comply with the statutory requirements as to its manner of fastening, but was so constructed that horses could not open it, and there was no evidence to show that whoever opened it would have been more apt to shut it had it been a statutory gate. Held insufficient to show that the improper construction of the gate was the proximate cause of the injury.

Appeal from Circuit Court, Worth County; Stepp, Judge.

Action by Henry Rowen against the Chicago Great Western Railway Company. Judgment of the Court of Appeals, reversing a judgment in favor of plaintiff, certified to the Supreme Court. Judgment of the circuit court reversed.

This cause was certified to this court by the Kansas City Court of Appeals for the reason that the conclusions reached and announced by a written opinion is in conflict with a decision by the St. Louis Court of Appeals in case of Kavanaugh v. Railway Co., 75 Mo. App. 78, which was also certified to this court because one of the judges held that the ruling of the majority was in conflict with prior decisions of that court. This cause reached the Kansas City Court of Appeals by appeal on the part of the defendant from a judgment in the circuit court of Worth county in favor of plaintiff. The opinion announced by the Kansas City Court of Appeals was by Broaddus, J., in which the entire court concurred. It is apparent, therefore, that had it not been for the Kavanaugh Case decided by the St. Louis Court of Appeals, which was afterwards certified to this court and decided by this court (163 Mo. 54, 63 S. W. 374), the present controversy would in all probability have never reached this court. It is here, and the record is before us for consideration.

Kelso, Schooler & Kelso, for appellant. Lingenfelter & Hudson, for respondent.

FOX, J. (after stating the facts).

We have carefully examined the evidence in detail as developed at the trial of this cause, and find that the statement of the controlling facts as made by the learned judge of the Kansas City Court of Appeals is substantially correct. Therefore the solution of this controversy must be sought in the consideration of the correctness of the conclusions reached and announced by the Kansas City Court of Appeals upon the state of facts disclosed by the record.

The opinion, in full, of Judge Broaddus was as follows:

"The finding of the jury and judgment thereon was for the plaintiff, and defendant appealed. The suit is for the killing of plaintiff's horses on defendant's tracks; they having escaped from plaintiff's inclosed premises through a gate at a farm crossing. There is no dispute as to these facts. It is shown by all the evidence that the track of defendant runs through plaintiff's land and that the same is fenced; that at the point where the plaintiff's horses escaped from his premises the defendant had erected a gate for his use in crossing its track, as his farm was situated on both sides of said track; and that said gate was not a statutory gate, not being hung and fastened in the manner required by statute, but otherwise as to construction was a proper gate. The gate in controversy was not hung on hinges or fastened by hooks or latches, but was suspended at one end upon a cleat which was attached to two upright posts set up in the ground, and that it was secured by shoving the other end between two other upright posts. There is little or no controversy about the character of the gate, except that some of the witnesses state that the gate was old and somewhat dilapidated; others, that it was substantially a good gate. The horses were killed during the night of November 4, 1897. In the evening prior, about 5 o'clock, the gate was closed. When Corbett and other witnesses were informed that stock were on the track, they went to the place about 11 or 12 o'clock of the night mentioned, saw the stock that had been injured, and found the gate wide open.

"The witnesses generally agree that the gate as constructed did not easily open and shut; and, judging from a description of the gate, such must have been the fact. The proper way to open said gate was to slide it back over the cleat until its weight was about equally divided on each side of the cleat, and then it could be easily opened or shut. These undeniable facts conclusively show that the horses did not open the gate in the manner it was found by the witnesses. There was an attempt to show that the gate was not closed on the evening preceding the killing of the stock, or that the gate was not securely fastened. The physical facts, as well as the testimony of witnesses, show that the gate was intentionally opened by some person and left open. Certainly, the gate as constructed and hung was not such as the statute required. Under the statute in question, for failure upon the part of railroads to erect and maintain the required fences and gates, they are liable for all damages `which shall be done by its agents, engines or cars to horses, etc., occasioned by the failure to construct and maintain fences' (which also includes gates).

"The facts in this case are very much like those in Kavanaugh v. Railroad Company. 75 Mo. App. 78, except in that case the gate was secured by hook and staple, and the court came to the conclusion that the gates (there were two gates in that case) must have been opened by some person passing through during the night, and upheld the finding of the trial court, which was for the plaintiff. In the case of Morrison v. Railroad Co., 27 Mo. App. 418, the facts were greatly different. There it was shown that the gate was made of wire and boards, and one of the posts had entirely rotted off, so that the gate was suspended by the wires and planks, and it had no latch or other fastenings. The only way it would open and shut was by lifting up the gate and post and placing it in position. `This was so troublesome to persons passing through that the result was that the gate as a rule stood open, and the plaintiff kept his...